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10. Sri Vijayakumar Majage, learned Additional State Public Prosecutor has strenuously argued that the findings of the Trial Court in the impugned judgment regarding acquittal of the accused under Section 376 of IPC is against the evidence on record and the evidence adduced by PW.9, the victim as well as the medical evidence of PW.6-Dr.Pushpalatha. He further contended that even though the prosecution is able to prove that the accused abducted the victim girl and forcibly had intercourse with her after marrying her and even if the ingredients under Section 366A are not attracted, but the ingredients under Section 366 of IPC would be attracted as per the evidence of the prosecution. Even if there is any error or omission in framing of charges by the Trial Court, that can be cured as per the provisions of Section 464 of Cr.P.C. and on the ground of an error or omission or irregularity in the framing of charge, the sentence cannot be set aside. Further, the learned Additional State Public Prosecutor has contended that even though PW.9 has categorically stated that the accused abducted her and detained her in the house of PW.1 i.e. his friend's house, later the accused took her to B.R.Hills and married her by tying Thali and thereafter, she was taken back to the house of PW.1 where she was made to stay and had intercourse with her against her consent or will, but the Trial Court has disbelieved her evidence and acquitted the accused, which is erroneous. Therefore, the findings require to be interfered and the accused is required to be convicted for the offences under Sections 366 and 376 of IPC and prayed for dismissing the appeal filed by the accused and allowing the appeal filed by the State.

21. On a careful perusal of the evidence, once the prosecution failed to prove the ingredients of Section 366A of IPC, unless there is injustice caused to the party, the Court cannot set aside the sentence and remit the matter back for framing of charges. No doubt, the learned Additional State Public Prosecutor was right in contending that the sentence cannot be reversed only on the basis of error or omission in framing of charges as per the provisions of Section 464 of Cr.P.C., but in view of the judgment of the Hon'ble Supreme Court in the case of Sat Prakash (supra), the arguments raised by the learned State Public Prosecutor cannot be acceptable to hold that the accused is guilty for the offence under Section 366 of IPC, in view of failure to prove the charges against the accused. That apart, a bare reading of Section 366 of IPC defines that there should be an intention or compulsion by the accused against the will of a woman whereas in Section 366A of IPC, the word 'will' is not mentioned, but shown as 'minor'. Normally, the consent is immaterial when the prosecutrix is a minor below the age of 18 years. However, looking to the entire circumstance of the case, the evidence of the prosecutrix is not reliable in order to accept that she was abducted, in view of the inconsistency in the evidence made by her before the Court and staying with the accused for almost 15 days without any agitation and in view of the opinion of PW.6 in Ex.P.6 that she was unfit for intercourse. Based upon the evidence on record, the Trial Court acquitted the accused for the offence under Section 376 of IPC, however, committed an error in accepting the evidence of the prosecution by convicting the accused for the offence under Section 366A of IPC when there is no ingredient made out by the prosecution. Considering the evidence on record, we are of the opinion that the Trial Court though right in acquitting the accused under Section 376 of IPC, but committed error in convicting the accused under Section 366A of IPC. Therefore, we are of opinion that the prosecution failed to prove the charges against the accused for the offence punishable under Section 366A or 376 of IPC beyond all reasonable doubt. Therefore, the accused is entitled for acquittal of both the charges leveled against him before the Trial Court. Accordingly, we proceed to pass the following order: